"WTS Paradigm Software as a Service End User Agreement
IMPORTANT - READ THIS SOFTWARE AS A SERVICE END USER AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE CONTINUING. BY CLICKING THE “I AGREE” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. ALL TERMS USED IN THIS PARAGRAPH HAVE THE MEANING SET FORTH IN THIS AGREEMENT. YOUR USE OF THE SERVICE IS SUBJECT TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DO NOT AGREE” BUTTON AND MAY NOT USE THE SERVICE.
Section 1: Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
(a) “Agreement” means this Software as a Service End User Agreement, the applicable Privacy and Security Policy.
(b) “Confidential Information” means the Service, Content, WTS Technology, and any source code, object code, method, process, technique, customer list, design, skill, record, research and development project, non-public aspect of WTS’ business and operations, business contact, potential business affiliation, information, technical data, financial data, know-how, login credentials, passwords, or information that WTS is required to keep confidential in accordance with confidentiality obligations to third parties, including by example and not limited to, that which is related to research, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances provided by one party, regardless of whether disclosed orally, observed visually, or not marked as confidential. Confidential Information does not include the fact that WTS and You have entered into a business relationship or information, technical data or know-how which (i) is in Your possession at the time of disclosure as shown by Your files and records immediately prior to the time of disclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action by You; (iii) is approved for release in writing by WTS; or (iv) information that qualifies as a Trade Secret (which shall be kept confidential for as long as such information remains a Trade Secret under applicable law).
(c) “Content” means the visual and audio information, documents, data, information, graphics, software, products, processes, and services made available to Customer and You by WTS in the course of using the Service.
(d) “Customer” means the entity identified as the Customer in the Software as a Service Subscription Agreement between WTS and Customer under which You are an authorized User of the Service.
(e) “User Data” means any data, information, or material in electronic form residing in the Service environment that is provided or submitted by Customer or You to the Service in the course of using the Service, including, but not limited to, Customer’s or Your catalog and order data.
(f) “Force Majeure” means utility or transmission failures, communications failures, software failures, electronic failures, mechanical failures, power failures, strikes or other labor disturbances, third-party supplier failures, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters, explosion, embargo, government requirement, civil or military authority, government regulation, acts or omissions of carriers, or other similar causes beyond the reasonable control of a party or its contractors, agents, or suppliers.
(g) “Open-Source Components\" means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
(h) “Privacy and Security Policy” means the terms and conditions for privacy and security located online at http://wtsparadigm.com/saasprivacypolicy/, which are incorporated herein by reference.
(i) “Related Parties” means the affiliates, parent company, subsidiaries, shareholders, members, directors, officers, employees, agents, attorneys, successors, and assigns of WTS.
(j) “SaaS” means software as a service.
(k) “Service” means the specific edition of WTS’ online software identified in Customer’s Software as a Service Subscription Agreement with WTS which is accessible via the Internet at the designated URL, website, or IP address, and ancillary online or offline products and services provided to You by WTS, to which You are being granted access under this Agreement, including the WTS Technology and Content.
(l) “Subscription” means the right to access the Service during the term of this Agreement.
(m) “Subscription Fees” means the recurring fees for access to the Service.
(n) “Third-Party Materials\" means materials and information, in any form or medium, that are not proprietary to WTS, including any third-party: (a) documents, data, content or specifications; (b) Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
(o) “Trade Secret” means any and all documents or information relating to WTS, Customer, and User(s) that meet the definition of a Trade Secret under Section 134.90, Wisconsin Statutes. Examples of Trade Secrets may include, but are not limited to, software architecture, formulas, patterns, compilations, programs, devices, methods, techniques or processes, product costs and mark-up information, and service costs and mark-up information.
(p) “User(s)” means an individual who is authorized by WTS to use the Service and who have been supplied user identifications and passwords by WTS, as well as the company or other legal entity for which the individual is accepting this Agreement.
(q) “WTS” means WTS Paradigm, LLC, a Wisconsin limited liability company.
(r) “WTS Technology” means all of WTS’s proprietary technology (including software, code, programming, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made accessible to You by WTS in providing the Service.
(s) “You” and “Your” refers to the individual that has entered into this Agreement on behalf of himself or herself and the company or other legal entity on behalf of which he or she is accepting this Agreement.
Section 2: System Access and Restrictions
(a) Subject to the provisions of this Agreement, including the Privacy and Security Policy, as well as the payment of all applicable Subscription Fees by Customer for the term of such Subscription, WTS grants to You, and You hereby accept, a limited, nonexclusive, nontransferable, worldwide right to use the Service, solely for Your own internal business purposes. All rights not expressly granted to You are reserved by WTS. Any access granted under this Agreement is conditioned on You remaining in compliance with all terms this Agreement and Customer remaining in full compliance with all terms in its Software as a Service Subscription Agreement, including Customer’s full and continued payment of all fees and costs under such Software as a Service Subscription Agreement and any related agreements.
(b) You shall not: (i) allow third parties to access or use the Service, Content, or WTS Technology, except as specifically authorized by this Agreement; (ii) provide Service passwords or other log-in information to any third party, except as specifically authorized by this Agreement or WTS; or (iii) share non-public features or content with any third party. In the event that it suspects any breach of the requirements of this Section 2, including, without limitation, by You, WTS may suspend Your access to the Service without advance notice, in addition to such other remedies as WTS may have. Nothing in this Agreement requires that WTS take any action against Customer, You, any User, or other third party for violating the terms of this Agreement, but WTS is free to take any such action as it sees fit, in its sole discretion.
(c) You may not access the Service if You are or become a competitor of WTS. In addition, You may not access the Service for purposes of monitoring Service availability, performance, or functionality, or for any other benchmarking or competitive purposes.
(d) Except as expressly provided in this Agreement, You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, grant access to, or otherwise commercially exploit or make available to any third party the Service, Content, WTS Technology, login credentials, or passwords in any way; (ii) modify or make derivative works based upon the Service or Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) reverse engineer the Service, Content, or WTS Technology, or (v) access the Service, Content, or WTS Technology in order to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions, or graphics of the Service, or (3) copy the Content or any code, features, functions, ideas, text, or graphics of the Service. User login credentials and passwords cannot be shared or used by more than one individual User, but, subject to WTS’ approval, may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
(e) You may use the Service only for Your internal business purposes and shall not: (i) copy, modify, publish, sell, export, distribute, transfer or perform, or prepare derivative works of, reverse engineer, decompile or otherwise attempt to extract the source code or source data from the Service; (ii) attempt to disable, circumvent, or breach any security mechanisms used by the Service or otherwise attempt to gain unauthorized access to any portion or feature of the Service; (iii) use the Service in any way that infringes or violates any intellectual property rights or publicity/privacy rights; (iv) use the Service in violation of applicable laws; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material violative of third party intellectual property rights or privacy rights; (vi) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (viii) attempt to gain unauthorized access to the Service or its related systems or networks; (ix) use or make the Service available on a service bureau or time sharing basis; or remove, replace, alter, or obscure any WTS service marks or trademarks, any user agreement, warranty or disclaimer notices from the Service, system views, or user interfaces on which the Service is viewed or accessed or any associated materials without WTS' express written consent; or (x) permit any User or other third party to do any of the foregoing.
(f) No Software License. You acknowledge that WTS has no delivery obligation and will not ship or otherwise provide copies of any software programs, whether in a physical or downloadable format, to You as part of the Service. You agree that You do not acquire under this Agreement any license to any software programs. Upon the termination or expiration of this Agreement (or the Service provided hereunder) or any related license agreements, Your right to access and use Service shall terminate.
(g) Export Controls. WTS provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries which the United States, Switzerland, and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You, and any of Your Users, are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The software and Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. WTS makes no representation that the Service is appropriate or available for use in locations other than the United States and Canada. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of Content contrary to U.S., Swiss, or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical, or biological weapons, or missile projects, unless specifically authorized by the U.S. government or appropriate European body for such purposes.
(h) IP Addresses. WTS will maintain and control ownership of all internet protocol numbers and addresses that it may assign to You. WTS may, in its sole discretion, change or remove any and all internet protocol numbers and addresses.
(i) Interruption of Service. WTS and its Related Parties will not be liable for any temporary delay, outages, or interruptions of the Service. Further, WTS and its Related Parties are not liable for any delay or failure to perform its obligations under this Agreement where the delay or failure results from (a) scheduled maintenance; (b) acts or omissions of Yours, Customer’s, or any other User, whether authorized by WTS or not; (c) failure in Your, Customer, or third party equipment or telecommunication lines connecting Customer or You to the Service; or (d) any Force Majeure event.
(j) User Activity. You voluntarily engage in the activity of Internet use and bear the risks associated with that activity. WTS exercises no control over and expressly disclaims any obligation to monitor You, Customer, other customers and users with respect to breaches of this Agreement or any information made available for distribution via the Service, including without limitation any information passing through WTS’ host computers, network hubs, and points of presence, or the Internet. In no event will WTS or its Related Parties, have any liability to You, any customer, other Users, or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Service through accident or fraudulent means or devices.
Section 3: User's Responsibilities
(a) You shall use and maintain reasonable security precautions in light of Your use of the Service. You shall take reasonable steps to prevent unauthorized access to the Service, including without limitation, by protecting passwords and other login information.
(b) You shall operate and maintain in working order and good repair all equipment and systems required to access the Service and shall provide access to WTS during normal business hours to Your facilities in order to perform the Service or any portion thereof.
(c) You are responsible for all activity occurring under Your user account(s) and shall abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data.
(d) You shall: (i) notify WTS immediately and use Your best efforts to stop, and provide assistance to WTS to stop, any actual or threatened breach of the prohibitions provided in Section 2 of this Agreement; (ii) notify WTS immediately of any unauthorized use of any password or account or any other known or suspected breach of security and shall use Your best efforts to stop such breach; (ii) report to WTS immediately and use Your best efforts to stop immediately any copying or distribution of Content that is known or suspected by You; and (iii) not impersonate another user or provide false identity information to gain access to or use the Service.
(e) You shall permit WTS to audit Your use of the Service. You shall cooperate with WTS’ audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your use of the Service.
Section 4: The Service and System Environment
(a) WTS reserves the right to provide the Service from any location, and through use of subcontractors, in its sole discretion, worldwide.
(b) System Revisions. WTS may revise features and functions of the Service or the Service Level Agreement at any time by removing non-material features and functions or by adding such features and functions or by increasing service levels.
(c) Security Breaches. You acknowledge that WTS does not control the transfer of data over telecommunications facilities, including the Internet, and that WTS does not warrant secure operation of the Service or that it will be able to prevent third party disruptions of the Service. You agree that WTS shall have no liability for any provision of security-related services or advice that WTS may voluntarily provide to You that is outside the scope of this Agreement, including the Service Level Agreement. WTS and its Related Parties are not responsible for any security breaches affecting any equipment, servers, or accounts under Your control. If Your equipment or servers are responsible for or involved in an attack on or unauthorized access into another server or system, then You shall notify WTS immediately, and, in any event, WTS will have the right to respond accordingly, including, without limitation, the right to identify, isolate, and block the source of the attack.
(d) Prohibited Data. You are prohibited from uploading, transmitting, and/or storing to Service the following types of data and information: any information or data that would require or otherwise necessitate compliance with the Payment Card Industry (PCI) Data Security Standard (DSS), credit card numbers, bank/financial account numbers, health information, social security numbers, driver's license numbers, or passport or visa numbers.
(e) Data Storage. WTS and its Related Parties make no guarantees about retaining any data stored on WTS’ or its subcontractors’ systems or servers following expiration or termination of this Agreement. WTS will typically delete such data seven (7) days following termination of this Agreement by either You or WTS or termination of the Software as a Service Subscription Agreement between Customer and WTS. You will not have access to User Data stored on WTS’ systems or servers during a suspension or following termination or expiration of this Agreement. WTS reserves the right to withhold, remove, and/or discard User Data without notice for any Customer or User breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Your right to access or use User Data immediately ceases, and WTS and its Related Parties shall have no obligation to maintain or forward to You any User Data.
(f) WTS Tools. WTS may use tools, scripts, software, services, and utilities (collectively, the \"Tools\") to monitor and administer the Service and to help resolve Customer’s or Your service requests. The Tools may collect, report, and/or store User Data residing in the Service system environment as necessary to troubleshoot service requests or other problems in the Service. Data collected by the Tools may also be used to assist in managing WTS’ product and service portfolio and for license management. You agree that they will not access or use the Tools.
(g) Service Statistics. WTS may compile statistical information related to the performance of the Service, and may make such information publicly available, provided that such information does not incorporate User Data and/or identify Your confidential information or include Your name. WTS retains all intellectual property rights in such information.
Section 5: Consideration
The consideration paid for Your use of the Service under this Agreement shall be deemed paid as long as Customer continues to make all required payments under its Software as a Service Subscription Agreement and any related agreements with WTS.
Section 6: Term and Termination
(a) Term of Agreement. This Agreement commences on the date You first accept it and continues until all Subscriptions hereunder have expired or have been terminated or this Agreement has been terminated as provided herein (“Term”). Access to the Service remains conditional and is contingent on timely payment and fulfillment of all obligations with respect to this Agreement, all Subscriptions, and any related agreements. At the end of the term of this Agreement or the Subscriptions, all rights to access or use the Service shall end.
(b) Termination. Upon termination of this Agreement, all Subscriptions under this Agreement shall also terminate. The parties may terminate this Agreement as follows:
(i) Termination by You. You may terminate this Agreement and any particular Subscription at any time and for any reason by ceasing Your use of the Service and providing written notice to WTS, provided that any such termination will not affect any other agreements or any particular Subscription then in effect that has not also been terminated.
(ii) Termination by WTS. WTS may terminate this Agreement immediately (A) for a failure by You to comply with the terms of this Agreement; (B) in the event WTS discontinues the Service; (C) in the event the Software as a Service Subscription Agreement between Customer and WTS is terminated; or (D) in the event You or Customer seeks the protection of any bankruptcy court, becomes insolvent, or makes an assignment for the benefit of creditors.
(c) Suspension of Service. WTS may, directly or indirectly, and by use of a disabling device or by any other lawful means, suspend, terminate or otherwise deny Your access to or use of all or any part of the Service, without incurring any resulting obligation or liability, if: (a) WTS receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires WTS to do so; or (b) WTS believes, in its sole discretion, that: (i) You have failed to comply with, any term of this Agreement, or accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of WTS; (ii) You are, have been, or are likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of WTS’ other rights or remedies, whether at law, in equity, or under this Agreement and shall not excuse Customer or You from any obligation to make payment(s) under this Agreement or any other agreement still in effect.
(d) Obligations on Termination.
(i) Upon termination or expiration of this Agreement, Your right and ability to access the Service and User Data shall cease immediately and WTS shall have no obligation to retain any data stored on WTS’ or its subcontractors’ systems or servers. Each party shall, within ten (10) business days, destroy or return to the other party Confidential Information of such other party in its possession or control.
(ii) Upon termination of this Agreement, the parties shall have no further obligations pursuant to the terms of this Agreement except that obligations pursuant to Sections 1, 6(d), 7, 8, 9, 10, 11, and 12 shall survive termination.
Section 7: Intellectual Property
(a) You acknowledge and agree that the Confidential Information, Service, Content, WTS Technology, WTS Trade Secrets, and this Agreement contain proprietary and confidential information that is protected by applicable intellectual property and other laws. “WTS” and “WTS Paradigm” are the intellectual property of WTS, and You may not display such marks without the written consent of WTS. All right, title, and interest in and to the Service and underlying source code, whether tangible or intangible, including, but not limited to, patent, copyright, trademark and Trade Secret rights and further including all right, title, and interest in and to any images, photographs, animations, video, audio, music, text, user interface, APIs, and “applets” incorporated into the Service are owned by WTS.
(b) WTS shall not own any right, title or interest in or to User Data. As between WTS and You, You, Customer, and other Users shall own all such User Data that has been reduced to a quote or sales order; provided, however, that You hereby irrevocably grant all such rights and permissions in or relating to User Data: (a) to WTS and its subcontractors as are necessary or useful to perform the Service; and (b) to WTS as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. WTS may collect, use, and disclose information and data regarding how the Service is used, processes information, and otherwise performs, as well as information and data for buyer segmentation, purchasing behavior, statistical, performance, usage, and quality assurance purposes. WTS has the right to access and monitor the use of the User Data and other actions and data within the Service and the use of the Service by Users and You hereby consent to the collection and use of such information and data as described herein. All information collected by WTS will be used by WTS and may be shared with third parties in the aggregate without any identifying information and shall be WTS’ Confidential Information. Any information or data produced by WTS, the Tools, or the Service regarding the performance and usage of the Service, buyer segmentation, purchasing behavior, and analysis and compilations of aggregate data collected by WTS is considered proprietary information owned by WTS.
WTS may disclose aggregate data and/or information so long as such data and/or information do not include any personally identifiable information associated with You or any identifiable data related to the intellectual property that You create through WTS tools and included in the quote or configuration data. Nothing contained herein restricts or limits WTS’ collection and use of aggregate data, and WTS may, in its sole discretion, share aggregate data with third parties for various legitimate business purposes, including for analysis, sales purposes, and improvement of the Service and WTS’ software, products, services, and processes.
(c) You may not remove the copyright, trademark, or other proprietary notices (if any) from the Service or any onscreen display when the Service is accessed. You may not disclose the Service, this Agreement, in whole or in part, or otherwise provide information from the Service, this Agreement, in whole or in part, to any third party or parties not directly affiliated with You without the written consent of WTS, which may be withheld by WTS in its sole and absolute discretion. Further, You shall neither engage in nor permit any use of the Service such that a copy would be made of the Service solely by virtue of the activation of a machine containing a copy of the Service. You are limited to the actions as provided in Section 2. Any actions by You outside of the scope of Section 2 are considered contrary to WTS’ proprietary rights.
(d) You acknowledge that any use or disclosure of WTS’ proprietary rights and marks as described in this paragraph in a manner inconsistent with the provisions of this Agreement will cause WTS irreparable damage for which remedies other than injunctive relief will be inadequate, and You agree that WTS shall be entitled to injunctive or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement.
(e) WTS has not agreed to and does not agree to treat as confidential any information, suggestions, or ideas for improving or otherwise modifying any of WTS’s products or services that You provide to WTS, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict WTS’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit such information, suggestions, or ideas without compensating or crediting You for providing such suggestions or ideas.
Section 8: Non-Disclosure
(a) Confidential Information. You agree not to use WTS’ Confidential Information or Trade Secrets disclosed to You by WTS for Your own use or for any purpose except in the performance of this Agreement. You will not disclose WTS’ Confidential Information to third parties or to Your employees or agents without the written consent of the other party, except to those employees or agents who are required to have the information in order to perform this Agreement. You agree that You will take all reasonable steps, including all steps that You would take to protect Your own Confidential Information, to protect the secrecy of and avoid disclosure or use of WTS’ Confidential Information in order to prevent it from falling into the possession of unauthorized persons. You agree to immediately notify WTS in writing of any misuse or misappropriation of such Confidential Information.
(b) Trade Secrets. You agree that except as required by the scope of the Agreement or expressly agreed upon in writing by WTS, You will not use, directly or indirectly disclose, or publish any of WTS’ Trade Secrets. You acknowledge that any unpermitted use or disclosure of WTS’ Trade Secret will cause WTS irreparable damage for which remedies other than injunctive relief will be inadequate and that WTS shall be entitled to injunctive relief or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement. The term of this covenant not to disclose Trade Secrets is unlimited and survives the termination of this Agreement.
Section 9: Warranties and Disclaimers
(a) WTS DOES NOT GUARANTEE THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT WTS WILL CORRECT ALL SERVICE ERRORS. YOU ACKNOWLEDGE THAT WTS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WTS AND ITS RELATED PARTIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
(b) WTS AND ITS RELATED PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE, WTS TECHNOLOGY, OR ANY CONTENT. WTS AND ITS RELATED PARTIES DO NOT REPRESENT OR WARRANT AND DISCLAIM ALL WARRANTIES THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU, CUSTOMERS, USERS, OR THEIR CUSTOMERS THROUGH THE SERVICE WILL MEET YOUR, CUSTOMER’S, USERS’, OR THEIR CUSTOMERS’ REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WTS AND ITS LICENSORS.
(c) ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED \"AS IS\" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
(d) TO THE EXTENT NOT PROHIBITED BY LAW, EXCEPT AS PROVIDED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
(e) You recognize and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, You assume such risks. WTS and its Related Parties offer no representation, warranty, or guarantee that User Data will not be exposed or disclosed through errors or the actions of third parties.
(g) You represent and warrant that You are under no obligation or disability, created by law or otherwise, which would in any manner or to any extent prevent or restrict You from entering into and freely performing this Agreement, and You hereby accept the obligations hereunder.
(h) You represent and warrant that the User Data does not infringe upon or misappropriate any third party intellectual property rights, including, but not limited to, any patent, copyright, trademark, or trade secret right, and such User Data does not otherwise violate any law.
(i) WTS AND ITS RELATED PARTIES PROVIDE THE SERVICE “AS IS AND AVAILABLE WITH ALL FAULTS” AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WTS OR AN AUTHORIZED REPRESENTATIVE OF WTS SHALL CREATE A WARRANTY. YOUR SOLE REMEDY FOR ANY DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE.
(j) THE PARTIES INTEND THAT THE LIMITATIONS, LIMITED REMEDIES, AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
Section 10: Indemnification and Limitation of Liability
(a) You agree that to the fullest extent permitted by law, You shall indemnify, defend, and hold harmless WTS and its Related Parties from and against all claims, suits, damages, losses, and expenses (including without limitation attorneys' fees, back wages, liquidated damages, penalties or interest) arising directly or indirectly out of any (a) claims arising out of Your use of the Service; (b) use by You of, or connection to, or the inability to use or connect to, the Service; (c) information transmitted or stored through or on the Service; (d) acts or omissions in connection with either (a), (b), and (c) above; or (e) breach of this Agreement by You; provided, however, that WTS shall have the right to approve, in its reasonable discretion, the selection of attorneys engaged by You to settle or defend such claims or suits and You shall not settle any claim or suit without the prior written approval of WTS. This indemnity shall survive the termination or expiration of this Agreement.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF WHAT CAUSE OF ACTION OR CLAIM FOR RELIEF IS ASSERTED, IN NO EVENT SHALL WTS OR ITS RELATED PARTIES BE LIABLE FOR ANY (I) DIRECT DAMAGES; (II) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, LOSS OF DATA, LOST TIME, LOST SAVINGS OR OTHER BENEFITS, LOST CONFIDENTIAL OR OTHER INFORMATION, LOSS OR IMPAIRMENT
OF GOODWILL, LOSS OF USE, BUSINESS INTERRUPTION, DAMAGE TO EQUIPMENT, CLAIMS AGAINST YOU, CUSTOMER, OR ANY USER BY ANY THIRD PERSON, OR FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WTS OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (III) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY WTS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND WTS’ REASONABLE CONTROL; OR (IV) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST WTS MORE THAN ONE YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.
(c) THE PARTIES INTEND THAT THE LIMITATIONS, LIMITED REMEDIES, AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
Section 11: Non-Exclusivity
You recognize that WTS’ may provide the Service or a similar service for others, and this Agreement shall not prevent WTS from providing the Service or other services that are similar to those provided hereunder, provided, however, that WTS shall not use or infringe upon any Confidential Information of Yours or any of Your other proprietary and intellectual property rights in providing the Service or other services for others.
Section 12: Miscellaneous
(a) Governing Law, Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without reference to conflict of law principles. Venue and jurisdiction for any federal or state court litigation or any alternative dispute resolution including mediation and arbitration shall be Dane County, Wisconsin. All alternative dispute resolution shall be conducted in person in Dane County, Wisconsin.
(b) Waiver of Right to Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SUBSECTION.
(c) Force Majeure. Except for any monetary obligations hereunder, neither party shall be liable for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by a Force Majeure event. The delayed party must notify the other party promptly upon the occurrence of any such event and inform the other party of its plans to resume performance.
(d) Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersede any prior agreement, understanding, and communication between the parties, whether written or oral, with respect to such subject matter.
(e) Transfer and Assignment. You may not assign or transfer this Agreement or access to the Service to a third party. Any merger that involves You, any sale or transfer of more than fifty percent (50%) of Your voting stock or any sale of all or substantially all of Your assets shall be considered a prohibited assignment of this Agreement. WTS is permitted to assign or otherwise transfer this Agreement to any third party without Your consent. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective representatives, successors, and permitted assigns.
(f) Severability; No Waiver. In the event that any term or condition of this Agreement is determined to be invalid, illegal or otherwise unenforceable, such determination shall have no effect on the other terms and conditions, which shall continue to be binding upon the parties hereto. Lack of enforcement of any term or condition in this Agreement shall not be construed as a waiver of any rights conferred by such term or condition.
(g) Relationship. No joint venture, partnership, employment, or agency relationship exists between You and WTS as a result of this Agreement. Each party shall have sole responsibility for payment to its employees and its subcontractors, including all tax payments and report obligations and shall indemnify the other party for all such expenses and obligations.
(h) Requirement to Give Notice of Consultants to Obtain Non-Disclosure Agreements. Before You are permitted to hire a consultant to render assistance to You in the setup of the Service or in the operations of the Service, You must first provide written notice to WTS providing the name and address of all such consultants, and all such consultants must first sign a Non-Disclosure Agreement to protect WTS’ Confidential Information with terms reasonably acceptable to WTS. WTS reserves the right to reasonably refuse to allow a specific consultant to render assistance to You or obtain access to the Service.
(i) Survival Clause. All duties and responsibilities of any party, which, either expressly or by their nature, extend into the future, shall extend beyond and survive the end of the contract Term or cancellation of this Agreement. In addition, the expiration or earlier termination of this Agreement shall not relieve either party of obligations incurred prior to the termination date.
(j) Notices Clause. All notices or communications required or permitted as a part of the Agreement shall be in writing (unless another verifiable medium is expressly authorized) and shall be deemed delivered when:
(1) Actually received,
(2) Upon receipt by sender of a certified mail return receipt signed by an employee or agent of the receiving party,
(3) If not actually received, then (10) days after deposit with the United States or Canadian (as the case may be) postal service authorized mail center with proper postage (certified mail, return receipt requested) affixed and addressed to the respective other party at the address set out in the Agreement or such other address as the party may have designated by notice amendment to the other party,
(4) Upon delivery by You of the notice to an authorized WTS representative at Your site, or
(5) Upon delivery by WTS of the notice to an authorized representative of Yours.
(k) Alternative Dispute Resolution. Except for actions to seeking injunctive relief to protect intellectual property rights or Confidential Information, in the event of a dispute between the parties arising under or in connection with this Agreement, both parties agree to first use their best efforts to settle the dispute through negotiation. Each party shall make available an officer or representative, who shall have authority to bind his or her respective party, to consult and negotiate with each other in good faith to resolve the dispute. If the dispute cannot be settled through such negotiation within 30 days, then, upon notice of either party to the other party, the parties shall engage in mediation for the outstanding issues prior to any lawsuit being filed by either party. Mediation shall take place in person in Dane County, Wisconsin.
(l) Binding Agreement. This is binding agreement for the SaaS service(s) identified in this Agreement and is effective on the Effective Date. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof."